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entitled 'Women's Earnings: Federal Agencies Should Better Monitor
Their Performance in Enforcing Anti-Discrimination Laws' which was
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On September 12, 2008, this report was revised because page 3 of the
Department of Labor's agency comment letter was omitted from Appendix V.
Report to Congressional Requesters:
United States Government Accountability Office:
GAO:
August 2008:
Women's Earnings:
Federal Agencies Should Better Monitor Their Performance in Enforcing
Anti-Discrimination Laws:
GAO-08-799:
GAO Highlights:
Highlights of GAO-08-799, a report to congressional requesters.
Why GAO Did This Study:
In 2003, GAO found that women, on average, earned 80 percent of what
men earned in 2000 and workplace discrimination may be one contributing
factor. The Equal Employment Opportunity Commission (EEOC) and the
Department of Labor (Labor) enforce several laws intended to prevent
gender pay discrimination. GAO examined (1) how EEOC enforces laws
addressing gender pay disparities among private sector employers and
provides outreach and what is known about its performance, and (2) how
Labor enforces laws addressing gender pay disparities among federal
contractors and provides outreach and what is known about its
performance. GAO analyzed relevant laws, regulations, monitoring
reports, and agency enforcement data and conducted interviews at the
agencies’ central offices and two field offices experienced in gender
pay cases.
What GAO Found:
EEOC addresses gender pay discrimination primarily by responding to
individual charges, initiating investigations, and conducting outreach,
but the agency does not fully monitor gender pay enforcement efforts.
EEOC prioritizes incoming charges of discrimination against employers
that appear to merit further investigation, and GAO’s analysis of EEOC
data showed that charges of gender pay discrimination were prioritized
for investigation more frequently than non-gender pay charges. EEOC
collects detailed information on all its enforcement efforts and uses
these data to monitor enforcement performance overall as well as by
statute, including one statute dedicated to gender pay. However, EEOC
does not monitor gender pay enforcement efforts under another statute
that covers multiple discrimination topics and under which more than
half of gender pay charges are filed. As a result, EEOC does not make
complete use of available information to help identify trends related
to gender pay cases, set agency priorities, or understand how its
gender pay enforcement efforts are contributing to overall performance
goals relative to other efforts. EEOC also conducts both fee-based and
free outreach on a broad range of topics, which can include gender pay.
EEOC monitors the number and type of free outreach activities and holds
itself accountable for providing outreach to both employers and
employees and obtaining high audience ratings on some fee-based
outreach.
Labor’s Office of Federal Contract Compliance Programs (OFCCP) conducts
compliance evaluations targeted to federal contractors based on whether
they may be engaging in systemic discrimination, but efforts to monitor
the performance of enforcement and outreach activities are limited.
OFCCP uses a mathematical model to select contractors for review based
on the likelihood of noncompliance, but it has not yet evaluated the
model for how well it predicts systemic discrimination due to resource
constraints. In addition, regulations require contractors to conduct a
self-evaluation of their compensation systems to identify and address
gender pay disparities. However, OFCCP’s guidance on this is found in
different source documents that are not cross-referenced, and its data
system lacks a unique code to help the agency easily determine the
extent to which contractors are complying with the self-evaluation
requirement. While OFCCP collects enforcement data by type of
discrimination and monitors enforcement performance overall, it does
not monitor enforcement trends and performance outcomes regarding
gender pay or other specific areas of discrimination. Even if it were
to do so, questionable reliability of certain enforcement data
undermines performance monitoring. As a result, OFCCP may have
difficulty determining how best to prioritize its resources among the
different types of discrimination it addresses. To increase awareness
of anti-discrimination laws, OFCCP also conducts outreach to federal
contractors on topics that include gender pay. OFCCP holds itself
accountable for achieving a targeted number of events, but does not
systematically gather recipient feedback and use it to measure the
quality of its outreach efforts. In contrast, Labor’s Women’s Bureau,
which also provides outreach to working women, sets performance targets
and systematically measures its impact.
What GAO Recommends:
GAO recommends that EEOC and OFCCP monitor performance of their
enforcement efforts related to gender pay and that OFCCP ensure its
planned new data system uses reliable data, measure performance of its
outreach efforts, evaluate the mathematical model used to target
contractors, provide links between pertinent guidance, and devise a
unique violation code to track any non-compliance with the self-
evaluation requirement.
EEOC agreed with GAO’s recommendation; Labor neither agreed nor
disagreed; and both provided additional perspective on their
enforcement efforts.
To view the full product, including the scope and methodology, click on
[hyperlink, http://www.gao.gov/cgi-bin/getrpt?GAO-08-799]. For more
information, contact Anne-Marie Lasowski on (202) 512-7215, or at
lasowskia@gao.gov.
[End of section]
Contents:
Letter:
Results in Brief:
Background:
EEOC Responds to Individual Charges of Discrimination and Provides
Broad Outreach, but Does Not Track Performance Related to Gender Pay
Issues:
Labor Targets Systemic Gender Pay Discrimination and Conducts Outreach,
but Limitations Exist in Enforcement Efforts and Monitoring
Performance:
Conclusions:
Recommendations for Executive Action:
Agency Comments and Our Evaluation:
Appendix I: Scope and Methodology:
Appendix II: Comparison of Key Gender Pay Provisions under the Equal
Pay Act and Title VII of the Civil Rights Act:
Appendix III: Assessment of Equal Opportunity Survey:
Appendix IV: Comments from the Equal Employment Opportunity Commission:
Appendix V: Comments from the Department of Labor:
Appendix VI: GAO Contact and Staff Acknowledgments:
Related GAO Products:
Tables:
Table 1: Number of Agency-Initiated Investigations Filed by Fiscal
Year:
Table 2: Average Days to Process Gender Pay and Non-Gender Pay Charges,
FY 2000-FY 2007:
Table 3: Comparison of Selected Gender Pay Discrimination Provisions of
Title VII and the EPA:
Figures:
Figure 1: Percentage Change in the Number of Non-Gender Pay and Gender
Pay Charges Filed, FY 2000-FY 2007:
Figure 2: Charge Prioritization and Resolution Process:
Figure 3: Percentage of Gender Pay and Non-Gender Pay Charges
Prioritized for Investigation, Mediation, and Dismissal, FY 2000-FY
2007:
Figure 4: Percentage of Gender Pay and Non-Gender Pay Charges, by
Category, Resolved in 180 Days or Fewer, FY 2000-FY 2007:
Figure 5: Filing Rates for Gender Pay Charges under Title VII and the
EPA, FY 2000-FY 2007:
Abbreviations:
EEOC: Equal Employment Opportunity Commission:
EPA: Equal Pay Act of 1963:
FY: fiscal year:
Labor: Department of Labor:
OFCCP: Office of Federal Contract Compliance Programs:
Title VII: Title VII of the Civil Rights Act of 1964:
[End of section]
United States Government Accountability Office:
Washington, DC 20548:
August 11, 2008:
The Honorable Edward M. Kennedy:
Chairman:
Committee on Health, Education, Labor,
and Pensions:
United States Senate:
The Honorable Tom Harkin:
Chairman:
Subcommittee on Labor, Health and Human
Services, Education, and Related Agencies:
Committee on Appropriations:
United States Senate:
The Honorable Hillary Rodham Clinton:
United States Senate:
The Honorable Carolyn B. Maloney:
House of Representatives:
The Equal Pay Act of 1963 and the Civil Rights Act of 1964, along with
judicial precedents, are credited in part with narrowing the pay gap
between men and women over the past several decades. Despite these
gains, in 2003 GAO found that women earned, on average, 80 percent of
what men earned in 2000 and that workplace discrimination may be one
contributing factor.[Footnote 1]
Discrimination can occur on an individual basis or on a systemic basis,
whereby an entire class of individuals is affected by an employer's
practices or policies or where there is a broad impact on an industry,
profession, company, or geographic location. The Equal Employment
Opportunity Commission (EEOC) and the Department of Labor's (Labor)
Office of Federal Contract Compliance Programs (OFCCP) are responsible
for enforcing federal laws and regulations[Footnote 2] that prohibit
pay and other employment discrimination on the basis of sex, race,
color, religion, national origin, and disability.[Footnote 3] EEOC
oversees the employment practices of more than 600,000 private and
public sector employers, in addition to federal government agencies.
OFCCP oversees the employment practices of nearly 90,000 federal
contractors--private sector employers who have contracts with the
federal government. Both EEOC and OFCCP provide outreach and technical
assistance to employers, workers, and the general public about rights
and responsibilities concerning anti-discrimination laws. In addition,
Labor's Women's Bureau also provides outreach on topics specific to
working women.
In light of the pay gap we reported previously and the potential that
workplace discrimination may be one contributing factor, you asked us
to examine a broad range of issues concerning gender pay disparities
and the enforcement of anti-discrimination laws in the private and
public sectors. In this report, we focus on EEOC and Labor enforcement
and outreach efforts in the private sector. Specifically, we address
(1) how EEOC enforces laws addressing gender pay disparities among
private sector employers and provides outreach, and what is known about
its performance, and (2) how Labor enforces laws addressing gender pay
disparities among federal contractors and provides outreach, and what
is known about its performance.
To conduct this work, we reviewed relevant federal laws and regulations
and each agency's policies, procedures, and monitoring reports relevant
to enforcement and outreach efforts. We interviewed EEOC and Labor
officials in their respective central offices and visited two field
offices for each agency. We chose field offices with recent experience
with gender pay cases that varied by size and geographic location. We
also analyzed EEOC's and OFCCP's data on gender pay and non-gender pay
cases reviewed from fiscal year (FY) 2000 to FY 2007.[Footnote 4] We
determined that EEOC's enforcement data were sufficiently reliable for
the purposes of this report by testing it for accuracy and
completeness, reviewing documentation about the data and systems that
produced them, and interviewing agency officials knowledgeable about
the data and data systems. Using similar methods, we found that OFCCP's
enforcement data were not sufficiently reliable for the purposes of
this report. Therefore, we could not analyze trends with respect to the
number and resolution of gender pay cases. To help assess what is known
about the performance of EEOC's and OFCCP's enforcement, outreach, and
technical assistance efforts, we reviewed each agency's performance
plans, reports, and other management information. We also judgmentally
selected and contacted several private sector organizations
representing employers, federal contractors, researchers, and women's
groups to obtain their views of EEOC's and Labor's enforcement and
outreach efforts. Further details of our scope and methodology can be
found in appendix I. We conducted our work from July 2007 to August
2008 in accordance with generally accepted government auditing
standards. Those standards require that we plan and perform the audit
to obtain sufficient, appropriate evidence to provide a reasonable
basis for our findings and conclusions based on our audit objectives.
We believe that the evidence obtained provides a reasonable basis for
our findings and conclusions based on our audit objectives.
Results in Brief:
Consistent with its legal mandate, EEOC enforces laws prohibiting
gender pay discrimination primarily by responding to charges of
discrimination from individuals, conducting a limited number of agency-
initiated investigations, and providing outreach and training. EEOC's
gender pay charges declined by 35 percent from FY 2000 to FY 2007 and
represented about 2 percent of all charges in FY 2007. To effectively
use its resources, the agency prioritizes all new charges as they are
received according to whether they appear to merit further
investigation. About 32 percent of the gender pay charges between FY
2000 and FY 2007 were prioritized for further investigation, compared
to about 21 percent of charges related to other types of
discrimination. During this 8-year period, EEOC also filed 35 agency-
initiated investigations related to gender compensation, representing
19 percent of all agency-initiated investigations. Although EEOC
collects detailed data on each charge--including the type of
discrimination alleged and relevant statute--and regularly monitors its
overall enforcement efforts, the agency does not monitor its gender pay
performance in a comprehensive manner. For example, the agency
regularly monitors performance information--such as the timeliness and
outcome of charges--by applicable statute. As such, it can monitor
performance for gender pay enforcement under one relevant law that
exclusively deals with gender pay issues, but not under another
relevant law--under which more than half of gender pay charges are
filed--that addresses both gender pay and non-gender pay
discrimination. As a result, EEOC lacks a complete picture to help
identify trends, help set agency priorities, and understand the extent
to which gender pay enforcement efforts specifically contribute to its
overall performance goals. In addition to enforcement of laws, EEOC
conducts both free and fee-based outreach and training for employers
and the public, which generally covers a broad range of topics
including gender pay. EEOC measures the performance of some fee-based
outreach by holding senior regional officials accountable for providing
a certain number of events and achieving high quality ratings from
participants. For free outreach, where collecting participant feedback
is not always feasible, EEOC monitors the number of recipients and the
number and type of events to ensure that it reaches both employers and
employees.
Labor's enforcement efforts target systemic discrimination, but
limitations exist in these efforts as well as in performance monitoring
of gender pay enforcement and outreach. Labor's OFCCP selects
contractors for a compliance evaluation based, in part, on a
mathematical model that predicts the likelihood that the employer may
be engaging in systemic discrimination. OFCCP officials said that they
have not evaluated the model's effectiveness yet due to lack of
resources, but plan to initiate a review later this fiscal year.
OFCCP's enforcement responsibilities also include ensuring that
contractors self-evaluate their compensation systems to identify
disparities, in accordance with its regulations. However, OFCCP's
guidance in this area is found in different source documents that are
not cross-referenced, and OFCCP cannot easily determine the extent of
non-compliance because its data system does not distinguish this
violation from other problems with a contractor's records. Like EEOC,
OFCCP does not monitor the extent to which its gender pay enforcement
efforts contribute to the agency's overall performance goals, although
OFCCP has access to fairly detailed information on specific types of
discrimination that could be used for this purpose. Even if it did
monitor gender pay, OFCCP's ability to assess its enforcement efforts
would be undermined by questionable data quality resulting from a lack
of standardized data entry instructions and inadequate internal
controls. OFCCP officials acknowledged these data problems and said
they would be addressed when the data system is replaced next year. In
addition to enforcement activities, OFCCP conducts outreach and
technical assistance that cover gender pay topics, typically when
changes are made to its policies or regulations in this area. OFCCP
monitors the number and type of its outreach events, but does not
systematically solicit feedback on the quality of these efforts or set
related performance targets. Within Labor, the Women's Bureau also
conducts outreach through projects that provide services to women but,
in contrast to OFCCP, systematically sets targets for its performance
and monitors its impact for each of its projects through participant
surveys.
We recommend that both EEOC and OFCCP develop methods to monitor their
enforcement efforts related to gender pay and that OFCCP help ensure
that its planned new data system incorporates adequate internal
controls to help improve the reliability of its enforcement data. We
also recommend strengthening enforcement efforts at OFCCP to include
evaluating the mathematical model used to select contractors for review
and improving oversight to help ensure contractors conduct the required
compensation self-evaluation. Finally, we recommend that OFCCP
systematically gather feedback on and monitor performance of its
outreach. In its written comments on a draft of our report, EEOC agreed
with our recommendation for more comprehensive monitoring of gender pay
discrimination and stated that it has already started examining the
best approach to accomplishing this. Labor neither agreed nor disagreed
with our recommendations. Both agencies provided additional perspective
and information on their enforcement efforts.
Background:
EEOC and OFCCP carry out their enforcement responsibilities by either
investigating charges of discrimination filed by individuals or by
initiating their own reviews of employers' workforces and employment
practices in the private sector. They also promote awareness and
prevention of discrimination through outreach to the public and
technical assistance to employers to help them understand and comply
with their legal obligations. In addition, Labor's Women's Bureau
provides outreach to women and their employers intended to improve the
status of wage-earning women.
EEOC:
EEOC was created in 1964 to promote equal opportunity in the workplace
and enforces federal laws that prohibit employment discrimination on
the basis of race, sex, color, religion, national origin, age, and
disability. EEOC investigates charges of employment discrimination from
the public, conducts agency-initiated investigations, litigates major
cases, and reaches out to the public to educate and prevent
discrimination.
The agency investigates charges of gender pay discrimination under two
laws:[Footnote 5] the Equal Pay Act of 1963 (EPA)[Footnote 6] and Title
VII of the Civil Rights Act of 1964 (Title VII).[Footnote 7] The EPA
generally requires that employers provide men and women equal pay for
equal work on jobs that require the same skill, effort, and
responsibility and that are performed under similar working conditions.
[Footnote 8] Title VII, which addresses issues related to equal
employment opportunity, makes it unlawful for employers to discriminate
against employees with respect to compensation or other aspects of
employment on the basis of sex.[Footnote 9] See appendix II for a
comparison of the key gender pay provisions under the EPA and Title
VII.
EEOC's responsibility for providing outreach is also established by
law. Title VII requires EEOC to conduct outreach targeted to
populations it serves, particularly those that have been historically
underserved, in cooperation with other federal agencies,[Footnote 10]
and to provide fee-based training to employers and others on equal
employment opportunity topics.[Footnote 11] EEOC conducts outreach to
educate the public about their rights under the law, and provides
technical assistance to inform employers of their responsibility to
comply with anti-discrimination laws.
In addition to its central office in Washington, D.C., EEOC is
organized into 15 districts, each with several field, area, and local
offices. These offices, with support from the central office,
investigate the approximately 80,000 to 90,000 charges that EEOC
receives each year, litigate cases, and provide outreach to the public
and employers. EEOC has jurisdiction over more than 600,000 employers
with over 90 million employees. At the end of FY 2007, EEOC had 2,158
full-time equivalent staff positions, which included 1,093
investigators, trial attorneys, and mediators. Its FY 2007 budget was
$329 million. Since FY 1997, when its budget was $240 million, EEOC's
budget has increased by approximately 6.7 percent after adjusting for
inflation.[Footnote 12]
OFCCP:
Established in 1965, OFCCP is primarily responsible for ensuring that
federal contractors, subcontractors, and federally assisted
construction contractors comply with applicable federal affirmative
action and equal opportunity requirements. OFCCP enforces Executive
Order 11246, as amended, which prohibits employment discrimination by
federal contractors on the basis of race, sex, creed, color, or
national origin.[Footnote 13],[Footnote 14] OFCCP also evaluates
whether large[Footnote 15] contractors meet an additional obligation:
to develop an affirmative action program that identifies any areas in
employment and compensation where employees are not receiving equal
opportunities and describes in detail specific steps to remedy the
problems.
OFCCP's central office in Washington, D.C., directs the nationwide
enforcement of equal employment opportunity laws and regulations, while
field staff in OFCCP's six regional offices and 50 district and area
offices conduct the actual enforcement activities. These activities
include initiating compliance evaluations--reviewing federal
contractors' compliance with the applicable laws and regulations--and
providing outreach and technical assistance to help contractors comply
with federal employment requirements.
In FY 2008, OFCCP had 585 full-time-equivalent staff positions. Its FY
2007 budget was about $82 million, which is 9 percent higher than its
FY 1997 budget of $76 million after adjusting for inflation.[Footnote
16]
Women's Bureau:
Congress established Labor's Women's Bureau in 1920[Footnote 17] to
formulate standards and policies intended to promote the welfare of
wage-earning women, improve their working conditions, increase their
efficiency, and advance their opportunities for profitable employment.
The Bureau operates from its central office in Washington, D.C., as
well as from 10 regional offices. In FY 2007, the Women's Bureau's
budget was about $10 million, with an authorized 60 full-time
equivalent employees.[Footnote 18]
EEOC-Labor Memorandum of Understanding:
In 1999, EEOC and Labor[Footnote 19] signed a Memorandum of
Understanding to enhance the effectiveness of their enforcement efforts
specifically regarding compensation discrimination. The memorandum
states that EEOC and Labor may share information with each other about
potential issues of compensation discrimination,[Footnote 20] provide
each other with semi-annual reports of actions taken on compensation
discrimination referrals, and meet periodically to coordinate
enforcement.
EEOC Responds to Individual Charges of Discrimination and Provides
Broad Outreach, but Does Not Track Performance Related to Gender Pay
Issues:
Consistent with its legal mandate, EEOC addresses gender pay
discrimination primarily by responding to individual charges, although
it also conducts some agency-initiated investigations. EEOC collects
detailed information on its enforcement efforts, but its does not
specifically monitor its performance related to gender pay enforcement.
As a result, EEOC does not use the information that it collects to
identify trends related to gender pay, which could in turn help EEOC
understand how its gender pay enforcement efforts contribute to overall
performance goals and agency priorities. EEOC also conducts fee-based
and free outreach on a broad range of topics, including gender pay. It
monitors free outreach to ensure that it reaches both employers and
workers and holds senior regional officials accountable for achieving
high quality ratings on some fee-based outreach.
EEOC Responds to All Individual Charges Using a Prioritized Approach
and also Conducts Some Agency-Initiated Investigations:
EEOC responds to all individual charges of gender pay discrimination,
as well as other individual charges of discrimination, filed under
federal law.[Footnote 21] Once an individual notifies EEOC of alleged
discriminatory treatment, EEOC arranges an interview and the individual
decides whether to file a charge of discrimination against the
employer.
Over the last 8 years, the number of gender pay charges has decreased
while the number of total charges has remained relatively constant.
Specifically, from FY 2000 to FY 2007, the number of gender pay charges
filed annually with EEOC decreased by 35 percent (from 3,165 to 2,064),
while the number of other individual charges filed annually remained
relatively constant at approximately 84,000.[Footnote 22] See figure 1.
EEOC officials told us they did not know the specific reasons for the
downward trend in gender pay charges, but noted that the types of
charges filed with the agency can be affected by issues covered in the
media, changes in law, or the state of the national economy. In FY
2007, gender pay charges accounted for about 2 percent of all charges.
Figure 1: Percentage Change in the Number of Non-Gender Pay and Gender
Pay Charges Filed, FY 2000-FY 2007:
[See PDF for image]
This figure is a multiple line graph depicting the percentage change in
the number of non-gender pay and gender pay charges filed, FY 2000-FY
2007:
Fiscal year: 2000;
Percentage change, non-gender pay: 0;
Percentage change, gender pay: 0.
Fiscal year: 2001;
Percentage change, non-gender pay: 1%;
Percentage change, gender pay: -6%.
Fiscal year: 2002;
Percentage change, non-gender pay: 5%;
Percentage change, gender pay: -8%.
Fiscal year: 2003;
Percentage change, non-gender pay: 1%;
Percentage change, gender pay: -19%.
Fiscal year: 2004;
Percentage change, non-gender pay: -1%;
Percentage change, gender pay: -29%.
Fiscal year: 2005;
Percentage change, non-gender pay: -7%;
Percentage change, gender pay: -32%.
Fiscal year: 2006;
Percentage change, non-gender pay: -6%;
Percentage change, gender pay: -41%.
Fiscal year: 2007;
Percentage change, non-gender pay: 0;
Percentage change, gender pay: -35%.
Source: GAO analysis of EEOC data.
[End of figure]
To effectively use its resources, EEOC prioritizes each charge as it is
received according to whether it appears to merit further
investigation.[Footnote 23] Specifically:
* EEOC assigns charges that appear to have merit based on the available
evidence for further investigation to determine whether the employer
violated anti-discrimination laws.[Footnote 24]
* EEOC offers mediation services for charges that may have merit, but
for which evidence needs to be further developed.[Footnote 25]
Mediation between an individual and employer is offered as an
alternative to a lengthy investigation. Participation in the mediation
program is confidential, voluntary, and requires the consent of both
parties. If mediation is not successful in resolving the charge, it is
assigned for investigation.
* EEOC usually dismisses charges that do not appear to have merit or
where the agency does not have jurisdiction.
If EEOC finds a violation as a result of its investigation, it attempts
to reach an agreement between the charging party and employer through a
conciliation process. If conciliation fails, EEOC may decide to
litigate the case in federal court. EEOC may resolve any charge with an
employer early in the process through settlement, which is a voluntary
process. The charge resolution process is depicted in figure 2.
Figure 2: Charge Prioritization and Resolution Process:
[See PDF for image]
This figure illustrates the charge prioritization and resolution
process, as follows:
Charge:
Investigation (generally occurs);
Determination of findings and, if appropriate, conciliation (generally
occurs);
Litigation (occurs when the agency is unable to mediate or conciliate
the charge).
Charge:
Mediation (generally occurs);
Investigation (occurs when the agency is unable to mediate or
conciliate the charge);
Determination of findings and, if appropriate, conciliation (generally
occurs);
Litigation (occurs when the agency is unable to mediate or conciliate
the charge).
Charge:
Early dismissal (generally occurs).
Source: GAO and EEOC.
[End of figure]
Compared to other types of charges, we found that gender pay charges
were less likely to be dismissed and more likely to be prioritized for
further investigation. Over the last 8 years, approximately 32 percent
of gender pay cases were prioritized for investigation, compared to
about 21 percent of non-gender pay charges, as shown in figure
3[Footnote 26]. According to EEOC officials, this difference may be
attributable to the apparent strength of evidence, such as payroll
data, initially presented by charging parties in gender pay cases as
compared to non-gender pay cases.
Figure 3: Percentage of Gender Pay and Non-Gender Pay Charges
Prioritized for Investigation, Mediation, and Dismissal, FY 2000-FY
2007:
[See PDF for image]
This figure is a multiple vertical bar graph depicting the following
data:
Processing category: Investigation;
Percent of charges, gender pay: 32%;
Percent of charges, non-gender pay: 21%.
Processing category: Mediation;
Percent of charges, gender pay: 58%;
Percent of charges, non-gender pay: 62%.
Processing category: Dismissal;
Percent of charges, gender pay: 9%;
Percent of charges, non-gender pay: 16%.
Source: GAO analysis of EEOC data.
[End of figure]
Although EEOC prioritized a greater percentage of gender pay cases for
investigation, the agency ultimately obtained a similar rate of
outcomes that were favorable to the charging party[Footnote 27] in
gender pay cases as it did in all others. Specifically, about 24
percent of gender pay charges, and 21 percent of all other charges,
resulted in conciliation, settlement, or a withdrawal that yielded
monetary or non-monetary benefits from FY 2000 to FY 2007. Agency
officials said the similarity in resolutions may be attributable to the
fact that most charges that enter mediation are resolved in a manner
that is favorable to the charging party but that charges filed under
the EPA are not mediated, pursuant to EEOC policy.[Footnote 28]
According to these officials, even though EPA charges are only one
component of all gender pay charges, this may lower the rate of
favorable outcomes for gender pay charges relative to non-gender pay
charges.
In addition to responding to individual charges, EEOC also initiates a
limited number of investigations, including gender pay investigations.
As shown in table 1, EEOC filed 35 agency-initiated gender pay
investigations and 153 non-gender pay agency-initiated investigations
between FY 2000 to FY 2007. The number of EEOC's agency-initiated
investigations is small compared to the more than 78,000 individual
charges addressed annually over the same period of time. Although EEOC
is legally authorized to pursue agency-initiated investigations, it is
not required to do so. According to agency officials, the large number
of individual charges and the agency's budgetary constraints make it
difficult for EEOC's field offices to carry out agency-initiated
investigations. At the same time, gender pay cases accounted for 19
percent of all agency-initiated investigations.
Table 1: Number of Agency-Initiated Investigations Filed by Fiscal
Year:
Gender pay;
2000: 4;
2001: 9;
2002: 2;
2003: 13;
2004: 3;
2005: 2;
2006: 1;
2007: 1;
Total: 35.
Non-gender pay;
2000: 23;
2001: 30;
2002: 30;
2003: 23;
2004: 7;
2005: 4;
2006: 11;
2007: 25;
Total: 153.
Total;
2000: 27;
2001: 39;
2002: 32;
2003: 36;
2004: 10;
2005: 6;
2006: 12;
2007: 26;
Total: 188.
Source: GAO analysis of EEOC data.
[End of table]
In 2006, EEOC instituted a greater focus on investigations of systemic
discrimination. These include agency-initiated charges and individual
charges that could benefit many individuals. This increased focus on
systemic discrimination may explain an increase in agency-initiated non-
gender pay investigations from 4 in 2005 to 25 in 2007. A similar rise
is not seen for agency-initiated gender pay cases.
In addition, EEOC and OFCCP entered into a Memorandum of Understanding
in 1999, agreeing to coordinate efforts on compensation discrimination
cases. Pursuant to the memorandum, EEOC officials stated that their
field offices have liaisons with area Labor offices and that each
agency refers cases to the other. Agency officials said OFCCP has
referred some cases to EEOC, but did not know if any of these involved
compensation discrimination in recent years.
EEOC's Performance Monitoring Related to Gender Pay Enforcement Is
Limited:
EEOC has performance goals related to its overall enforcement efforts,
which are not specific to gender pay or any other particular type of
discrimination issue. The agency's strategic plan defines 10 agencywide
performance measures, including the annual percentage increase in the
number of people benefiting from EEOC's enforcement program.[Footnote
29] Data on all of EEOC's enforcement efforts, including those related
to gender pay, are aggregated to report on the agency's performance
relative to these measures.
EEOC uses the data that it collects on every charge to track and
regularly report on disaggregated trends and outcomes related to its
performance goals, but these reports do not address gender pay cases in
a comprehensive manner. For example, EEOC generates monthly and
quarterly reports on a number of charge statistics--such as average
charge processing time, charge resolutions, and workplace and monetary
benefits--by statute, including the EPA and Title VII. While the EPA
statistics exclusively reflect gender pay cases, the Title VII
statistics cover many topics and are not broken down by type of
discrimination, such as gender pay[Footnote 30]. Because over half of
gender pay cases are filed only under Title VII (see appendix II),
trends involving cases filed under the EPA would not necessarily be
representative of all gender pay cases. The agency also posts annual
statistics on its Web site, showing the number of charges filed under
particular statutes, such as the EPA, as well as charges pertaining to
certain types of discrimination, including gender-based discrimination.
The statistics on gender discrimination include but are not broken out
by charges related to harassment, hiring, promotion, or gender pay.
[Footnote 31]
EEOC also generates ad hoc reports for specific analyses pertaining to
issues of interest to agency stakeholders, such as members of the
Commission and community and advocacy groups. With respect to gender
pay, EEOC has used its enforcement workload information to help
determine human capital needs within the agency. Specifically, EEOC
analyzed its litigation workload in 2001 by type of case and, as a
result of this analysis, the agency developed a training course on
resolving gender discrimination charges, including charges of gender
pay discrimination, for its investigative and legal staff.
Because performance information specific to gender pay charges is not
regularly monitored and reported, EEOC does not use that information to
identify trends or set priorities for enforcement or outreach related
specifically to gender pay. While EEOC generally reports charge
information by statute, gender pay charges can be processed and
resolved under multiple statutes; however, EEOC's reports do not show
trends for types of discrimination that are addressed under multiple
statutes.[Footnote 32] Reports that show only total charges by statute
may make it difficult to discern changes in the number of charges filed
for particular types of discrimination that result from new
legislation, court decisions, or media coverage of current events. For
example, the Supreme Court issued the Ledbetter v. Goodyear Tire &
Rubber Co. decision in 2007, which affected the filing timelines for
pay discrimination charges under Title VII.[Footnote 33] EEOC's regular
reports would not show whether the number of pay discrimination charges
changed following the decision, because it affected a subset of Title
VII charges, namely charges of pay discrimination.[Footnote 34]
EEOC does not know the extent to which its gender pay efforts, or its
enforcement efforts pertaining to any other particular type of
discrimination, are contributing to overall performance goals relative
to other types of discrimination. For example, EEOC has set an
agencywide goal of resolving 72 percent of its cases within 180 days
for FY 2007.[Footnote 35] Based on our review of EEOC data, 54 percent
of gender pay charges meet the 180-day goal, as compared to 63 percent
of all other charges (see figure 4). The only charges that consistently
met EEOC's timeliness goal were dismissals.
Figure 4: Percentage of Gender Pay and Non-Gender Pay Charges, by
Category, Resolved in 180 Days or Fewer, FY 2000-FY 2007:
[See PDF for image]
This figure is a multiple vertical bar graph depicting the following
data:
Categories: All charges:
Percent of charges, Gender pay: 54%;
Percent of charges, Non-gender pay: 63%.
Categories: Investigation:
Percent of charges, Gender pay: 39%;
Percent of charges, Non-gender pay: 39%.
Categories: Mediation:
Percent of charges, Gender pay: 58%;
Percent of charges, Non-gender pay: 65%.
Categories: Dismissal:
Percent of charges, Gender pay: 85%;
Percent of charges, Non-gender pay: 90%.
Source: GAO analysis of EEOC data.
[End of figure]
In addition, even though the number of gender pay charge filings has
declined from FY 2000 to FY 2007, they are more frequently referred for
further investigation, which takes longer on average than mediation and
significantly longer than dismissals (see table 2). Such analyses could
provide EEOC a better understanding of its workload, which could assist
in setting performance targets related to timeliness. Conversely,
without monitoring enforcement trends and performance outcomes by
specific type of discrimination, including gender pay, EEOC is not
fully equipped to pinpoint relatively effective or ineffective
strategies, identify gaps and priorities, or allocate its limited
resources to address specific discrimination issues.
Table 2: Average Days to Process Gender Pay and Non-Gender Pay Charges,
FY 2000-FY 2007:
Charge category: Investigation;
Gender pay: 294;
Non-gender pay: 306.
Charge category: Mediation;
Gender pay: 193;
Non-gender pay: 173.
Charge category: Dismissal;
Gender pay: 92;
Non-gender pay: 70.
Source: GAO analysis of EEOC data.
[End of table]
EEOC Conducts Outreach Covering Broad Topics, including Gender Pay, and
Measures Performance of Some Fee-Based Outreach:
EEOC's outreach takes many forms and addresses various audiences.
Outreach events include presentations, booths at information fairs,
consultations with individuals via phone or in person, media releases,
and information available on its Web site. EEOC provides two types of
outreach: free events for employers, employee groups, and individuals,
and fee-based conferences and training for employers, who may request
either pre-planned seminars on broad topics or customized training to
address specific needs at their worksite.
Both free and fee-based outreach efforts cover various topics,
including gender pay discrimination, but the focus is rarely on a
single issue. Topics include various aspects of EEOC's services, such
as:
* various types of discrimination (such as compensation),
* different bases for discrimination (such as gender),
* applicable laws (such as the EPA and Title VII), and:
* relevant EEOC processes (such as mediation and litigation).
About half of EEOC's free outreach events in FY 2007 included a general
overview that, according to EEOC officials, would likely have covered
gender pay discrimination along with other topics. In the same year,
about 29 percent of the fee-based outreach events covered an overview
of EEOC.[Footnote 36]
Few EEOC outreach events have specifically focused on gender pay in
recent years. For example, in 2007, the EPA was the primary topic at 3
percent of all free outreach events and 2 percent of fee-based events.
EEOC's central office also has several national initiatives that focus
both outreach and enforcement efforts on specific issues, but none have
covered gender pay in the past 10 years.[Footnote 37] Officials said
this is because the topics of national initiatives are based on the
specific interests of agency leadership, along with a general desire
for initiatives to focus on a range of issues.
Since FY 2004, EEOC has conducted an increasing number of free outreach
events, despite a general decline in EEOC's overall budget for outreach
after adjusting for inflation. Between FY 2004 and FY 2007, total
outreach events increased by 6 percent, driven largely by a 9 percent
increase in free events. At the same time, EEOC's inflation-adjusted
spending on outreach fell by 29 percent, driven largely by a 47 percent
decline in free outreach spending.[Footnote 38] EEOC officials told us
that EEOC's overall declining budget and shifting priorities led to the
decline in free outreach spending. They attributed EEOC's ability to
conduct more outreach with less money to changes in delivery methods,
such as less travel, greater use of technology, and shorter
presentations.[Footnote 39] In contrast, EEOC experienced a 22 percent
decline in the number of fee-based events and a 23 percent increase in
the budget for these events, adjusted for inflation, during the same
time period.[Footnote 40]
EEOC has some mechanisms for monitoring the performance of its fee-
based outreach.[Footnote 41] EEOC surveys audiences at some fee-based
seminars and uses this feedback to measure the quality of the outreach,
make improvements, and plan future events. EEOC senior regional
officials are held responsible for conducting a specific number of
these events and are evaluated on achieving ratings of "highly
successful" or above, as well as on the percentage of attendees who
complete evaluations.
In contrast, free outreach is evaluated on whether it reaches a mix of
audiences and promotes agency priorities. EEOC sets nationwide goals
for the number of free outreach events conducted in conjunction with
some of its national initiatives. It monitors progress toward these
goals by using data collected on the number of attendees, type of
event, audience characteristics, and topics covered at each event. EEOC
also uses its data to evaluate whether each field office's annual
outreach plans strike a balance between employers and employees--a
balance that officials told us is a priority for the agency. Unlike fee-
based outreach, EEOC does not evaluate its free outreach on its level
of quality. Senior EEOC officials said that EEOC does not survey or
gather feedback from recipients of free outreach, because many free
events, such as media releases or information booths, lack a well-
defined audience that could provide feedback.
EEOC has faced challenges in measuring the outcomes of its outreach
efforts overall. Officials stated that EEOC's outreach contributes to
two agencywide performance measures in its strategic plan: public
confidence in EEOC's work and public awareness of individual rights and
responsibilities. Although EEOC monitors the amount of outreach it
provides, it recently stopped using this information to measure the
extent to which its outreach efforts helped to achieve its agencywide
measures, after determining it could not do so accurately.[Footnote 42]
However, in 2002, GAO found that while it is difficult to measure
outcomes, it is possible to tie intermediate efforts, such as the
number of events and attendees, to outcomes using methods such as a
logic model.[Footnote 43] EEOC officials told us they are continuing to
consider ways to measure the outcomes of EEOC's outreach, including a
program evaluation.
Labor Targets Systemic Gender Pay Discrimination and Conducts Outreach,
but Limitations Exist in Enforcement Efforts and Monitoring
Performance:
Labor's OFCCP conducts compliance evaluations of federal contractors,
including those who may be engaging in systemic gender pay
discrimination, but the mathematical model used to target contractors
for systemic discrimination has not yet been evaluated. In addition,
OFCCP regulations require that contractors conduct self-evaluations of
their compensation systems, but relevant guidance is located in
different sources and not cross-referenced. The agency also lacks a
tracking mechanism to help ensure that contractors meet this
requirement. While OFCCP collects detailed enforcement data by type of
discrimination, it does not use this data to monitor enforcement trends
and performance outcomes regarding gender pay or other specific areas
of discrimination. Even if it chose to monitor specific areas of
discrimination, questionable reliability of enforcement data undermines
OFCCP's ability to monitor performance. As a result, OFCCP does not
know the extent to which its gender pay enforcement efforts contribute
to agencywide performance goals. OFCCP also conducts outreach to
federal contractors on topics that may include gender pay, but does not
systematically measure the performance of these efforts. In contrast,
Labor's Women's Bureau, which also provides outreach on topics focused
on working women, sets specific performance targets and measures its
impact.
OFCCP Conducts Compliance Evaluations and Targets Systemic
Discrimination:
OFCCP's enforcement of employment discrimination, including gender pay-
related discrimination, largely consists of compliance evaluations of
federal contractors. To help allocate resources efficiently, OFCCP
prioritizes some of its evaluations of federal contractors based on
whether they may be engaging in any type of systemic discrimination.
[Footnote 44] The compliance evaluation process begins with the semi-
annual selection of contractors.[Footnote 45] OFCCP selects contractors
for review, in part, using a mathematical model that predicts the
likelihood of finding systemic discrimination.[Footnote 46] The
remainder of contractors reviewed are selected based on other factors,
including the amount of time elapsed since their prior review and
random selection.[Footnote 47] OFCCP completed nearly 5,000 compliance
evaluations in FY 2007, representing about 5 percent of all federal
contractors.
Once OFCCP selects which contractors to review, it uses a tiered
approach to identify indicators of systemic discrimination, which in
turn determine the extent and resource intensiveness of the compliance
evaluation. Every evaluation starts with a desk audit, which is a
screening procedure to identify areas requiring further review. OFCCP
examines a contractor's compensation practices as part of the
evaluation. If no significant indicators of systemic discrimination are
found, OFCCP closes the desk audit. However, if such indicators are
found, OFCCP conducts a more in-depth compliance evaluation that
entails a more rigorous statistical evaluation and an on-site audit.
[Footnote 48] If, at the end this process, OFCCP finds systemic
unexplained differences, such as systemic pay differences between men
and women in similar occupations, it issues a notice of violation and
begins conciliation negotiations to seek remedial actions to correct
deficiencies, such as back pay and retroactive seniority, among other
remedies. If conciliation fails, OFCCP can pursue administrative
enforcement proceedings against the employer before an administrative
law judge, or debar the company from contracting with the federal
government.
Under OFCCP policy, the agency does not focus on individual cases of
discrimination like EEOC does, but both agencies have agreed to
coordinate efforts enforcing legal prohibitions against unlawful pay
discrimination, pursuant to a 1999 Memorandum of Understanding.
According to a senior OFCCP official, the agency has taken some steps
to implement the memorandum's provisions, such as referring individual
complaints on compensation and other matters to EEOC as appropriate.
While OFCCP has met periodically with EEOC to discuss enforcement, the
official did not know whether compensation cases were discussed at
these meetings because OFCCP does not track pay cases specifically for
these purposes.
OFCCP Has Not Yet Evaluated Its Mathematical Model to Select
Contractors:
OFCCP targets contractors based partly on a mathematical model that
predicts the likelihood of finding systemic discrimination, but the
agency has not yet evaluated it. The model, which is one of three
methods used to select contractors for review, is based on research
conducted by the firm Westat and assigns a higher likelihood of
systemic discrimination to some contractor establishments than others.
This model uses multiple factors that compare the workforce profile of
the targeted establishment to profiles of other establishments in the
same industry classification and to the profile of the local labor
market using Census data. While the model predicts the likelihood of
discrimination, OFCCP does not make an actual determination of
discrimination until further review.
OFCCP officials said that they began using the Westat model in FY 2004,
but have not yet assessed how effectively the model predicts systemic
discrimination and targets appropriate contractors for review. While
OFCCP reported that it originally expected to evaluate the model in
2007, officials told us that they have not done so due to limited
resources. Officials indicated that they now plan to do this later in
FY 2008, when compliance evaluations from the 2 prior years are
completed and sufficient and appropriate staff resources are
anticipated. OFCCP officials indicated that the evaluation of the
Westat model will incorporate lessons learned from evaluating a prior
model used to help select contractors for review: the Equal Opportunity
Survey. During the evaluation of that model, OFCCP encountered
unreliable data from some of the respondents and low response rates,
and did not verify contractors who claimed that the agency did not have
jurisdiction over them. According to OFCCP officials, the agency
subsequently addressed some of these challenges. For example, OFCCP
officials said that the reliability of the data has significantly
improved and that an initiative to identify establishments with federal
contracts--known as Contracts First[Footnote 49]--has resulted in a
more comprehensive list of establishments that fall under its
jurisdiction. However, because OFCCP has not yet developed evaluation
plans for the Westat model, it is unclear whether low response rates
will remain an issue and, if so, how this will be addressed. Appendix
III contains more information on the Equal Opportunity Survey.
Related Guidance from OFCCP Is Not Cross-Referenced and the Office
Lacks a Tracking Mechanism to Help Ensure Contractors Self-Evaluate as
Required:
In addition to targeting contractors for compliance evaluation, OFCCP
enforces discrimination laws by requiring contractors to self-evaluate
their compensation systems and other aspects of their employment
process.[Footnote 50] OFCCP's implementing regulations require that
contractors' affirmative action programs identify problem areas.
Therefore, contractors must perform in-depth analyses of their
employment processes, including their compensation systems, to identify
any disparities for women and minorities. However, OFCCP does not
always review compliance with the compensation self-evaluation
requirement for the contractors selected for a compliance evaluation.
Officials in one regional office we visited told us that, during the
desk audit, they review whether the contractor's affirmative action
program contains a general narrative statement that a self-evaluation
was conducted. However, the other regional office we visited did not
perform this review. Central office officials expressed little concern
over this inconsistency, noting that the compensation self-evaluation
aspect of contractors' affirmative action programs during desk audits
was not critical, because the desk audit would identify problem areas
with or without the contractor's affirmative action program.
Inconsistent reviews of self-evaluation requirements may be due, in
part, to the fact that OFCCP's guidance for conducting these reviews is
contained in different source documents without clear cross-references
or links to each other. Specifically, OFCCP's compliance manual--which
is posted to OFCCP's Web site and was last updated in 1998--does not
explicitly direct OFCCP investigators to review whether contractors
have satisfied the self-evaluation requirement, and does not contain
specific procedures for OFCCP investigators to follow when examining a
contractor's compensation self-evaluation. Since 1998, OFCCP has issued
additional notices that have superseded the manual, one of which,
issued in 2006, contains voluntary guidelines for contractors to follow
when conducting their compensation self-evaluation.[Footnote 51] As a
result, to ascertain current policy, investigators and federal
contractors have to check multiple information sources. OFCCP's Web
site includes references and hyperlinks to some recently issued
guidance on other issues, but has no linkages to the voluntary self-
evaluation guidelines.
Even when OFCCP discovers through a compliance evaluation that the
contractor did not perform the required self-evaluation, OFCCP's
compliance evaluation database records this violation as a general
recordkeeping violation rather than a specific violation of the self-
evaluation requirement, according to OFCCP officials. OFCCP officials
stated, however, that while the database lacks a specific code, the
underlying information is available in case files. Unless OFCCP
performs a manual file review, it cannot easily determine from its
database the extent to which contractors are in compliance with the
self-evaluation requirement.
Labor Does Not Monitor Performance Related to Gender Pay Enforcement
and Underlying Data Are Questionable:
OFCCP monitors agencywide enforcement efforts using broad performance
measures but does not monitor performance by specific types of
discrimination such as gender pay. OFCCP has two broad performance
indicators: reducing discrimination and increasing compliance, both of
which the agency met in FY 2007. According to agency officials, there
are no plans to introduce performance indicators by specific type of
discrimination because these two broad indicators appropriately reflect
the agency's overall mission, which focuses on discrimination in
general. While OFCCP's compliance evaluation database captures detailed
data on all types of discrimination, including gender pay, OFCCP does
not use the data to monitor its performance regarding gender pay or any
other type of discrimination.
OFCCP does conduct internal monitoring beyond its agency performance
indicators, but not with respect to gender pay enforcement. OFCCP has
stated that compensation discrimination--while not an agency
performance indicator--is a national priority; thus, OFCCP has
established performance standards for each of its senior regional
officials to evaluate how well each region develops systemic
compensation cases. However, these standards pertain to pay
discrimination overall without specifying whether it is based on
gender, race, or some other basis. OFCCP officials also said that they
use a number of sources, such as detailed weekly and quarterly reports,
along with monthly phone calls, to monitor how well regional offices
carry out specific enforcement cases; but this information is not
structured to track trends, assess performance outcomes, or prioritize
limited agency resources by specific type of discrimination. In
general, OFCCP senior officials said they do not see the benefit of
using the data already collected to internally monitor trends in gender
pay enforcement--or any other subset of the performance indicators.
However, without this type of monitoring, OFCCP may have difficulty
determining how best to prioritize its resources among the different
types of discrimination it addresses.
Even if OFCCP chose to monitor gender pay enforcement, questionable
data reliability would undermine OFCCP's ability to assess how well its
overall enforcement efforts were working. While officials said that the
reliability of OFCCP's enforcement data has improved significantly
since FY 2005, problems still exist with erroneous, inconsistent, or
missing data. For example, using OFCCP's data, we were unable to
determine the correct number of gender pay cases that OFCCP handled
over the 8-year period of our review. In addition, in testing of
OFCCP's data, we found incorrect violation codes, inconsistent case
closure dates entered, and conciliation or financial agreements dates
entered but corresponding violations missing. While OFCCP officials
said they check the data accuracy of some compliance evaluations
entered into the data system and verify the accuracy of contractor data
submitted at regular intervals,[Footnote 52] OFCCP officials
acknowledged a lack of standardized data entry instructions and
adequate internal controls[Footnote 53] to screen for data problems.
They added that these problems would be addressed with the planned
replacement of the data system next year. OFCCP has requested $2
million dollars for a new data system in its FY 2009 budget but does
not yet have funding for it.
OFCCP Provides Outreach to Federal Contractors, but Does Not
Systematically Measure Its Performance:
OFCCP's outreach consists primarily of technical assistance to federal
contractors. According to OFCCP officials, targeting federal
contractors rather than their employees is consistent with its role as
an enforcement agency. Technical assistance may include presentations
and workshops at industry group meetings; information and Web-based
seminars available on OFCCP's Web site; individual consultation with
contractors via telephone, e-mail, or walk-in appointments; and
information provided during audits.
OFCCP's technical assistance covers the discrimination issues and laws
over which OFCCP has jurisdiction, including gender pay. Most of
OFCCP's technical assistance efforts are designed to help federal
contractors meet their affirmative action requirements or understand
OFCCP's recent policy changes, including two changes involving gender
pay. For example, OFCCP issued new guidance in 2006 describing how it
will examine contractors' compensation practices by race and gender
during audits. Prior to and during the time these changes were
implemented, OFCCP officials provided technical assistance on how the
new policies would affect contractors.
With respect to performance of its outreach efforts, OFCCP monitors the
number of outreach and technical assistance efforts. For example, OFCCP
has regional and national goals for the number of outreach events
conducted. Regional offices submit weekly reports to the central
office, which generally include the date, type, and location of
outreach events, but these reports do not always indicate the issue
discussed at these events, nor do they include the number of attendees.
[Footnote 54] OFCCP uses this information to generate quarterly and
annual reports measuring its progress toward its outreach targets.
OFCCP also tracks the topics of e-mail and telephone inquiries, which
it uses to develop the Frequently Asked Questions section of its Web
site, and requests feedback from participants in its Web-based
seminars.[Footnote 55]
However, OFCCP's approach to measuring and monitoring the performance
of its outreach efforts is less systematic than EEOC's. Like EEOC,
OFCCP has no agencywide performance measures for outreach and evaluates
senior regional officials' performance based on the outreach and
technical assistance they provide. Conversely, unlike EEOC, OFCCP has
no specific targets related to the quality of outreach that senior
officials are required to meet. In addition, OFCCP is less systematic
than EEOC in collecting and reporting feedback on the quality of its
outreach. Officials told us that contractors and industry groups
sometimes contact OFCCP to provide informal feedback on outreach, and
representatives of several industry groups we spoke with said that
OFCCP's outreach generally meets their needs.[Footnote 56] Nonetheless,
the weekly reports from the regional offices we reviewed included a few
favorable comments from audience members rather than comprehensive
feedback from all attendees, making it difficult to objectively
determine the audience's overall assessment of the outreach. OFCCP
officials said that these informal methods of collecting and reporting
feedback are sufficient. However, by not systematically collecting and
tracking objective feedback from recipients, OFCCP has no reliable
means of measuring the quality of its outreach or using this
information to assess the impact of its outreach and improve future
efforts. [Footnote 57]
In addition to not knowing whether its outreach is effective, OFCCP
does not know how much it is spending on outreach. Officials estimate
about 30 percent of the budget is spent on outreach. However, OFCCP
officials we spoke with did not know exactly how much was spent on
outreach and technical assistance, and they could not provide details
on how these funds are used.[Footnote 58] Lacking accurate spending
information, OFCCP is unable to gauge the cost-effectiveness of its
outreach spending or evaluate whether this spending is in line with its
priorities.
Labor's Women's Bureau Provides Direct Services to Women and Is Meeting
Most of Its Goals:
Labor's Women's Bureau also provides outreach related to gender pay by
creating and promoting programs to address specific needs of working
women, such as financial literacy among Generation X women. The Bureau
develops these programs as demonstration projects in a few sites for 3
to 4 years and cultivates partnerships to encourage other government,
private, or community-based organizations to replicate and fund the
projects on a continuing basis. In FY 2007, the Bureau ran three
demonstration projects serving at least 2,238 women and 387 employers.
Since FY 2005, the Women's Bureau reports 45 replications in over 30
cities, providing services to more than 6,000 women.
In contrast to OFCCP, the Women's Bureau sets and systematically
measures its performance against numerical targets. Like OFCCP, the
Women's Bureau has targets for the number of outreach efforts (i.e.,
demonstration projects) it will conduct. However, in addition to
measuring the number of outreach efforts, the Women's Bureau has
assigned each project two to three performance measures that gauge the
ultimate impact of the project on participants' behavior, using follow-
up surveys to gather this information. For example, one project's goal
is to increase women's financial security, and its performance measure
calculates the percent of participants who decrease their debt or
increase their savings. Only one project includes a performance measure
related to gender pay, which tracks the percent of participants who
increase their earnings after participating in a demonstration project
designed to increase women's employment opportunities. While the Bureau
did not meet all of its goals for this project in 2007, it exceeded its
goals for its other two demonstration projects.
Changes to the Women’s Bureau in 2002:
Prior to 2002, the Women’s Bureau was involved with the Equal Pay
Matters Initiative, disseminating information to women and employers
about gender pay, discrimination, and related topics via its Web site
and media campaigns. The Initiative was discontinued in 2002, when the
Bureau changed the focus of its outreach from educating people about
gender pay discrimination to providing demonstration projects. These
programs now seek to help female workers obtain higher-paying jobs and
manage their finances. Officials told us this change was made, in part,
to reduce duplication of services provided by other government agencies
and that, while outreach no longer focuses on pay discrimination, the
Bureau provides information on this topic upon request. Officials also
indicated that they changed their approach in order to improve the
Bureau’s ability to measure its performance and impact, and that the
Equal Pay Matters Web site was removed because the Bureau no longer had
staff available to keep it up-to-date.
Conclusions:
Although the pay gap between men and women has narrowed over the last
several decades, as of 2000 women still earned less than their male
counterparts, suggesting that discrimination may still exist. This pay
gap underscores the importance of the federal government's role of
enforcing anti-discrimination laws and raising awareness of legal
requirements through outreach. While both EEOC and OFCCP have
appropriately set broad goals for enforcing all types of
discrimination, limited monitoring of specific enforcement efforts,
such as gender pay, relative to other areas,diminishes EEOC's and
OFCCP's ability to pinpoint relative workload trends, effective and
ineffective strategies, and contributions to performance goals. In
turn, these agencies are ultimately less able to strike an effective
balance in allocating increasingly limited resources to address overall
discrimination issues. A robust performance monitoring effort requires
reliable enforcement data to obtain a complete and accurate picture of
how well anti-discrimination laws are being enforced, but the absence
of effective internal controls has undermined the reliability of
OFCCP's data. Additionally, OFCCP strives to help contractors
understand and meet their obligations--spending about one-third of its
budget on technical assistance and outreach--yet does not
systematically collect and review information that would help it gauge
the cost-effectiveness of these efforts.
In addition to improving performance monitoring, OFCCP needs to address
limitations in its enforcement, particularly since compensation is a
national priority for the agency. Because OFCCP has chosen to use its
limited resources to audit selected federal contractors, OFCCP needs an
effective means of both prioritizing contractors for compliance
evaluations and ensuring contractors carefully evaluate their own pay
systems. However, until OFCCP evaluates the mathematical model used to
help target contractors, it cannot know how effectively it is using its
limited resources, or whether it is missing opportunities to apply a
more effective model. Because OFCCP conducts compliance evaluations on
about 5 percent of federal contractors each year, contractor self-
evaluations are a principle means of achieving compliance with federal
law for the vast majority of establishments. However, the absence of
links between current and pertinent guidance and the lack of a distinct
violation code to help track compliance with the self-evaluation
requirement limit OFCCP's oversight in this area.
Recommendations for Executive Action:
To gauge how well EEOC is carrying out its responsibilities regarding
gender pay discrimination, we recommend that the Chair of the EEOC
devise a cost-effective method to improve its ability to monitor the
performance of its gender pay enforcement efforts relative to other
areas, using information already captured in its databases and
supplementing information already reported.
To strengthen OFCCP's enforcement and outreach efforts and gauge the
performance of those efforts, we recommend that the Secretary of Labor
direct the Director of OFCCP to:
* Evaluate the Westat mathematical model and incorporate lessons
learned from the prior model to ensure contractors are appropriately
being selected for compliance evaluations and to maximize limited
enforcement resources;
* Improve oversight of compliance evaluations for contractors by
establishing linkages between relevant and current guidance on
conducting compensation self-evaluations and devising a unique
violation code to document any non-compliance with the compensation
self-evaluation requirement;
* Ensure the planned new data system incorporates standardized data
entry instructions and adequate internal controls to screen for
erroneous, inconsistent, or missing data, and ensures violation codes
are correctly entered;
* Develop a cost-effective means for monitoring performance of gender
pay enforcement efforts relative to other areas, using information
generally already captured in existing databases, once determined
reliable; and:
* Devise a method for systematically collecting feedback from
recipients of outreach and technical assistance and using this
information to measure and monitor outreach performance.
Agency Comments and Our Evaluation:
EEOC and Labor provided written comments on a draft of this report,
which are reprinted in appendixes IV and V, respectively. EEOC also
provided several technical comments, which we have incorporated as
appropriate.
EEOC agreed with our recommendation that it obtain and review gender
pay data and stated it already has undertaken discussions about the
best approach for doing so. However, the agency noted that regularly
monitoring charges filed under the EPA provides a representative
assessment of overall gender pay charge activity and an effective means
of monitoring charge activity, given agency resources. As a result,
EEOC officials stated they are able to highlight areas of concern and
effectively respond to changes in charge activity. In addition, EEOC
stated that, because it monitors many different types of
discrimination, it cannot meaningfully examine every possible type on a
regular basis. We acknowledge that monitoring gender pay charges filed
under the EPA can help to inform EEOC's decisions. However, as we noted
in our report, more than half of gender pay charges are filed only
under Title VII. Further, reviewing gender pay charges filed under only
EPA may not reveal the impact of external factors such as new
legislation, court decisions, or media coverage that may
disproportionately affect charges filed under one law, but not the
other. We agree that regular examination of every type of
discrimination would not be realistic; therefore, we limited our
recommendation to improving EEOC's ability to monitor its performance
regarding gender pay discrimination using available information.
Labor neither agreed nor disagreed with our recommendations, but
provided additional perspective on its broader enforcement efforts and
clarifying comments regarding some of our findings. With respect to its
broader enforcement efforts, Labor stated that it opens more reviews,
monitors a larger number of federal contractors than it has in the
past, and prioritizes resources where most needed. Labor reports that
these efforts have resulted in an increase in both total financial
remedies obtained and number of workers benefited.
In response to our recommendation that OFCCP take steps to improve its
oversight of contractors' compensation self-evaluations, Labor noted
that it does not rely on the self-evaluations during a compliance
evaluation and conducts its own audit. However, as we stated
previously, OFCCP performs compliance evaluations on about 5 percent of
contractors each year; therefore, the compensation self-evaluation
remains an important compliance tool for the remaining 95 percent of
contractors.
In response to our recommendations that Labor improve its performance
monitoring, Labor agreed that improved data quality will enhance its
monitoring efforts. In addition, Labor stated that OFCCP employs many
methods to monitor performance and does not rely on anecdotes. We
clarified our report to acknowledge this point. However, while we
identified the tools that Labor relies on to monitor performance, we
found they were not structured to track performance by specific type of
discrimination.
With regard to our discussion of the Westat model, Labor suggested
clarifying that the model is only one of several methods used to select
contractors for compliance evaluations, not the sole method. Although
we had already noted this in the preceding section of our report that
describes the contractor selection process, we also incorporated this
information in the report section that specifically discusses the
Westat model.
Labor disagreed with our assessment in appendix III of the Abt
Associates' study of the Equal Opportunity Survey in two respects.
First, Labor stated that the number of contractors who did not respond
to the survey--claiming no jurisdiction--was reasonable. However,
without verifying contractors' claims of no jurisdiction, OFCCP cannot
be certain that non-responses did not introduce bias into the results
of the study. Second, Labor noted that Abt analyzed the impact of one
group of contractors with missing data and found no effect on the
study's conclusions. We revised our report to acknowledge this and
clarified that our finding refers to additional contractor
establishments with missing data for one or more of the study's four
predictor variables. We found no indications that Abt analyzed the
impact of missing data with respect to these contractors.
As agreed with your offices, unless you publicly announce its contents
earlier, we plan no further distribution of this report until 30 days
after its issue date. At that time, we will send copies of this report
to the Secretary of Labor, the Chair of EEOC, relevant congressional
committees, and other interested parties. We will make copies available
to others upon request. In addition, the report will be available at no
charge on GAO's Web site at [hyperlink, http://www.gao.gov].
A list of related GAO products is included at the end of this report.
If you or your staff have any questions about this report, please
contact me at (202) 512-7215 or lasowskia@gao.gov. Contacts for our
Offices of Congressional Relations and Public Affairs may be found on
the last page of this report. GAO staff who made major contributions to
this report are listed in appendix VI.
Signed by:
Anne-Marie Lasowski:
Acting Director, Education, Workforce, and Income Security Issues:
[End of section]
Appendix I: Scope and Methodology:
To obtain information on how the Department of Labor (Labor) and the
Equal Employment Opportunity Commission (EEOC) enforce laws and provide
outreach addressing gender pay disparities, we reviewed documents and
data and conducted interviews. Documents we reviewed included relevant
federal laws and regulations; the agencies' policies, plans, monitoring
reports, and guidance; outreach materials, such as slides, brochures,
and information from Web sites; program assessments; and other
documents relevant to enforcement and outreach efforts.
In addition, we interviewed EEOC and Labor officials in their
respective central offices and two field offices for each agency. We
visited Labor's Office of Federal Contract Compliance Programs (OFCCP)
offices in San Francisco and Philadelphia and conducted phone
interviews with a senior investigator in Portland, Oregon, with
experience handling gender pay cases. We also visited EEOC offices in
San Francisco and New York. We selected these locations because they
had recent experience with gender pay cases, varied in size, and were
geographically disperse. However, they do not constitute a
representative sample. In addition to agency staff, we judgmentally
selected and interviewed representatives of several private sector
organizations representing employers, federal contractors, women's
groups, and researchers. While we sought a diversity of viewpoints
through these interviews, the views provided do not necessarily
represent the opinions of all employers or groups.
Data Reliability and Analysis:
We requested data on enforcement and outreach activities from each
agency as part of our review of the agencies' efforts regarding gender
pay. Specifically, we obtained:
* EEOC data on enforcement and activities for fiscal year (FY) 1997 to
FY 2007;
* EEOC data on outreach activities for FY 1998 to FY 2007; and:
* OFCCP data on enforcement activities for FY 2000 to FY 2007.[Footnote
59]
While we requested outreach data from OFCCP, the agency does not
maintain this information electronically.
We assessed the reliability of the agencies' electronic data by testing
the data for accuracy and completeness, reviewing existing information
about the data and systems that produced them, and interviewing agency
officials knowledgeable about the data and data system. We determined
that the EEOC enforcement data we used were sufficiently reliable for
the purposes of this report. However, we found that the OFCCP
enforcement data was not sufficiently reliable for our use and have not
included any analyses of gender pay trends based on these data in this
report. We found evidence that critical information, such as the type
of violation found during an investigation, was not sufficiently
reliable for our use due to concerns over data entry. The agency itself
relies on a separate, manual process to compile enforcement statistics
for its annual report. We were unable to reproduce these same
statistics using its case data system, because some violations were
improperly identified during OFCCP's data entry process. OFCCP's
current data system, which is almost 20 years old, is slated for
replacement in FY 2009.
To assess EEOC's enforcement efforts, we analyzed EEOC's case data from
FY 2000 to FY 2007 to determine how many charges of discrimination were
filed concerning gender pay disparities, which statutes the charges
were filed under, how these charges were classified and resolved, and
how many agency-initiated investigations EEOC conducted.[Footnote 60]
We also analyzed EEOC's data to examine its rates of success under two
of its performance goals (e.g., the percentage of cases processed
within 180 days and the number of individuals benefited) for gender pay
cases compared to non-gender pay cases.
To assess EEOC's outreach efforts, we examined EEOC's outreach and
budget data from FY 2004[Footnote 61] to FY 2007 to determine how many
free and fee-based outreach and technical assistance activities were
conducted, what primary topics were covered, what types of audiences
were reached, and how much was spent. EEOC officials told us their
methods of counting audience members recently changed. Therefore,
although we collected EEOC's data on the number of recipients of its
outreach, we did not use this information in our report, as it was not
suitable for year-by-year comparisons.
Finally, to help us understand the context of EEOC's and OFCCP's
enforcement and outreach efforts, we presented budget data from both
agencies from FY 1997 and FY 2007 to identify the level of funds
available over the past 10 years. We adjusted budget numbers for
inflation by using the Consumer Price Index to convert nominal dollars
to constant 2008 dollars.
OFCCP's Equal Opportunity Survey:
As part of our assessment of OFCCP's Equal Opportunity Survey, we
conducted interviews with OFCCP staff and reviewed documents and
studies. Specifically, we evaluated the methodology of OFCCP's study of
the effectiveness of the Equal Opportunity Survey and reviewed
documents related to the development and discontinuation of the survey.
[End of section]
Appendix II: Comparison of Key Gender Pay Provisions under the Equal
Pay Act and Title VII of the Civil Rights Act:
The Equal Employment Opportunity Commission (EEOC) enforces charges of
gender pay discrimination under two laws: the Equal Pay Act of 1963
(EPA) or under Title VII of the Civil Rights Act of 1964 (Title VII).
Slightly more than half of EEOC's gender pay charges are filed under
Title VII only, while most of the remainder are filed under both the
EPA and Title VII. Two percent of the charges are filed under the EPA
only, as shown in figure 5.
Figure 5: Filing Rates for Gender Pay Charges under Title VII and the
EPA, FY 2000-FY 2007:
[See PDF for image]
This figure is a pie-chart depicting the following data:
Filing Rates for Gender Pay Charges under Title VII and the EPA, FY
2000-FY 2007:
Title VII, not EPA: 57%;
EPA and Title VII: 41%;
EPA, not Title VII: 2%.
Source: GAO analysis of EEOC data.
[End of figure]
Some of the key provisions of the EPA and Title VII relative to gender
pay discrimination are compared in table 3. According to EEOC
officials, there are at least two notable differences between the
statutes that may account for some of the difference in filing rates:
* The EPA generally requires that employers provide men and women equal
pay for equal work on jobs that require the same skill, effort, and
responsibility and that are performed under similar working conditions.
[Footnote 62] Title VII, which addresses issues related to equal
employment opportunity, makes it unlawful for employers to discriminate
against employees with respect to compensation or other aspects of
employment on the basis of sex, but does not require the same close
comparison of workers as the EPA; and:
* The remedies available to plaintiffs under Title VII may be more
favorable in some cases.
Although some plaintiffs may find it preferable to file under Title VII
as compared to the EPA, it also has some disadvantages. Specifically,
the statute of limitations under Title VII is shorter (generally within
180 or 300 days of the alleged unlawful employment practice, depending
on the state) than under the EPA (within 2 or 3 years after the alleged
discrimination occurred, depending on whether the violation was willful
or not). In addition, plaintiffs may need to consider the Ledbetter
decision in determining under which law or laws to file charges.
Table 3: Comparison of Selected Gender Pay Discrimination Provisions of
Title VII and the EPA:
Year of enactment:
Title VII: 1964;
EPA: 1963.
General prohibition:
Title VII: It is an unlawful employment practice for an employer:
* To fail or refuse to hire or to discharge any individual, or
otherwise to discriminate against any individual with respect to his or
her compensation, terms, conditions, or privileges of employment,
because of such individual's gender; or;
* To limit, segregate, or classify his employees or applicants for
employment in any way that would deprive or tend to deprive any
individual of employment opportunities or otherwise adversely affect
his or her status as an employee, because of such individual's gender;
EPA: Generally, it is unlawful for employers to discriminate between
employees on the basis of sex by paying wages to employees at a rate
less than the rate at which they pay wages to employees of the opposite
sex for equal work on jobs the performance of which requires equal
skill, effort, and responsibility, and which are performed under
similar working conditions.[A]
Statute of limitations:
Title VII: Charges generally must be filed within 180 days after the
alleged unlawful employment practice occurred[B];
EPA: A cause of action may be commenced within 2 years after the cause
of action accrued, or in the case of a willful violation, within 3
years.
Enforcement agency may self-initiate investigations;
Title VII: Yes[C];
EPA: Yes[D].
Civil actions brought by EEOC;
Title VII: Generally, if within 30 days after a charge is filed with
EEOC, it has been unable to secure from the employer a conciliation
agreement acceptable to EEOC, it may bring a civil action against the
employer[E];
EPA: EEOC may bring an action to recover the amount of unpaid wages and
an additional equal amount as liquidated damages. Any sums recovered by
EEOC on behalf of employees are held in a special account and paid
directly to the affected employees. EEOC may also seek injunctive
relief.
Remedies available to aggrieved employees;
Title VII: If the employer intentionally engaged in unlawful employment
practices, the court may issue an injunction and order appropriate
affirmative action, which may include, but is not limited to:
* Reinstatement or hiring of employees, with or without back pay,[F]
or;
* Any other equitable relief as the court deems appropriate[G,H];
Compensatory and punitive damages may be awarded if the employer
engaged in unlawful intentional discrimination with malice or reckless
indifference to federally protected rights;
EPA: Unpaid wages and an additional equal amount as liquidated
damages.[I,J]
Attorney's fees;
Title VII: The court, in its discretion, may allow the prevailing
party, other than EEOC or the U.S., reasonable attorney's fees,
including expert fees[K];
EPA: If the plaintiff prevails, the court may require the defendant to
pay reasonable attorney's fees and the costs of the action.
Private right of action;
Title VII: Yes. If EEOC dismisses a charge, or if within 180 days from
the filing of such charge has not filed a civil action or entered into
a conciliation agreement to which the person aggrieved is a party, EEOC
shall notify the person aggrieved, who may bring a civil action against
the employer within 90 days;
EPA: Yes. An action to recover the available remedies may be maintained
against any employer by any one or more employees on behalf of
themselves or other similarly situated employees.[L]
Source: GAO analysis of applicable federal laws and regulations.
[A] However, such differences in pay are permissible if they are
attributable to (i) a seniority system; (ii) a merit system; (iii) a
system that measures earnings by quantity or quality of production; or
(iv) a differential based on any other factor other than sex.
[B] However, if the individual initially filed a complaint with a state
or local agency with authority to adjudicate the claim, the 180-day
period is extended to 300 days.
[C] In addition to aggrieved parties, members of the Commission may
also file charges alleging unlawful employment practices.
[D] EEOC may investigate and gather employer data regarding the wages,
hours, and other conditions and practices of employment, and may enter
and inspect such places and records, question employees, and
investigate such facts, conditions, practices, or matters as he may
deem necessary or appropriate to determine whether an employer has
violated the EPA.
[E] However, if the employer is a governmental entity, EEOC must refer
the case to the Attorney General, who may bring a civil action.
[F] Back pay liability cannot accrue from a date more than 2 years
prior the filing of a charge with EEOC, and interim earnings or amounts
earnable with reasonable diligence by the aggrieved employee reduce the
back pay otherwise allowed.
[G] More limited remedies are available if the employer can demonstrate
that it would have taken the same action in the absence of
impermissible consideration of gender as a motivating factor.
[H] Compensatory and punitive damages are available if the employer
engaged in unlawful intentional discrimination with malice or reckless
indifference to federally protected rights.
[I] If the court finds that the employer acted in good faith, the court
may, in its discretion, elect to award no liquidated damages or to
award less than the amount otherwise called for.
[J] In addition, if the violation is found to be willful, the employer
may be subject to criminal penalties, including a fine of up to $10,000
and/or imprisonment for up to 6 months.
[K] EEOC and the U.S. are liable for costs the same as a private
person.
[L] However, if an employee agrees to payment of wages owed as
supervised by EEOC, he or she waives the right to file suit and collect
liquidated damages. Additionally, employee rights to bring private
actions terminate upon the filing of a complaint by EEOC.
[End of table]
[End of section]
Appendix III: Assessment of Equal Opportunity Survey:
The Equal Opportunity Survey was introduced in 2000 to help select
federal contractors for compliance evaluations based on annually
collected data that included compensation by race and gender. The
survey was part of the Equal Pay Initiative, which, among other things,
provided additional funding for and coordination of the enforcement of
the laws against pay discrimination by employers, in part by improving
the collection of compensation data.
In developing the survey, the Office of Federal Contract Compliance
Programs (OFCCP) commissioned a study to evaluate the survey's power to
predict findings of discrimination. This study (Bendick et al)
encountered data problems associated with the pilot survey--such as
incomplete or inconsistent responses--that prevented a full-scale
analysis of its predictive power.[Footnote 63] A second study (Abt
Associates) was subsequently conducted after OFCCP officials said the
agency began focusing on systemic discrimination to evaluate how well
the model based on the survey could predict this type of
discrimination.[Footnote 64] The Abt study found that the model's
predictive power was only slightly better than a random selection of
contractors. OFCCP concluded that the survey was of limited value in
predicting systemic discrimination and subsequently discontinued it in
2006.
In reviewing OFCCP's evaluation of and its decision to discontinue the
survey, we found that the Abt study's methodology was adequate for the
most part, but we also identified several issues. First, more than a
quarter of contractors sampled asserted that OFCCP had no jurisdiction
to review them and were therefore removed from the sample, but there
was no evidence that these contractors' assertions had been verified.
Excluding them from the sample could introduce significant bias into
the results if some of these establishments were in the scope and were
more likely to engage in systemic discrimination than those that
remained in the sample. Second, after removing those establishments
from the sample, the overall response rate was about 50 percent. This
low response rate also potentially biases the study results and calls
into question the extent to which the sample is representative. For
example, establishments with systemic discrimination in the sample
could have very different characteristics than those that were not in
the sample or asserted no jurisdiction. Finally, although Abt analyzed
the impact of one group of contractors with missing data, an additional
388 (15 percent) establishments had missing data for one or more of the
final four predictor variables in the model, and we found no
indications that the study analyzed these contractors.
Appendix IV: Comments from the Equal Employment Opportunity Commission:
U.S. Equal Employment Opportunity Commission:
Office of the Chair:
Washington, DC 20507:
July 15, 2008:
Anne-Marie Lasowski, Acting Director:
Education, Workforce, and Income Security Issues:
U.S. Government Accountability Office:
Washington, D.C. 20548:
Dear Ms. Lasowski:
Thank you for the opportunity to comment on GAO Report GAO-08-799,
"Women's Earnings: Federal Agencies Should Better Monitor Their
Performance in Enforcing of Anti-Discrimination Laws." The primary
finding made by GAO for the U.S. Equal Employment Opportunity
Commission (EEOC) is that while we can monitor our gender pay
enforcement of charges filed under EPA, we do not monitor gender pay
charges that are filed exclusively under Title VII of the Civil Rights
Act of 1964, as amended, and that may address both gender pay and non-
gender pay discrimination. The report cites that given this lack of
comprehensive monitoring of gender pay charges, EEOC "lacks a complete
picture to identify trends, help set agency-wide priorities, and
understand the extent to which gender pay enforcement efforts
specifically contribute to its overall performance goals."
EEOC generally acknowledges this specific finding. Indeed, in response
to the finding, we have already undertaken discussions about
determining the best approach to collect gender pay charge data for
review and monitoring. However, the collection and monitoring of charge
receipt and resolution data at the statute level, specifically the EPA,
does provide us with a representative assessment of overall gender pay
charge activity. While it is not the comprehensive assessment that GAO
suggests as the ideal, given our resources and our need to effectively
assess our data in a manageable format, we are able to monitor our
gender pay charge activity by our review and tracking of the EPA charge
data statistics. Thus, the conclusion GAO reaches on page 36 that EEOC
is "less able to strike an effective balance in allocating increasingly
limited resources to address overall discrimination issues," is not a
true reflection of the decision-making that does occur about our charge
enforcement activity. We have been able to utilize our data, including
EPA charge data, to effectively respond to changes in charge activity
and to highlight areas of concern when needed.
Further, we believe that GAO did not adequately represent EEOC's
response to this issue. Specifically, in the course of our meetings
with GAO, EEOC responded to this matter by noting that there are a
multitude of statute/basis/issue combinations that we are able to
monitor by utilizing the data collected in our Integrated Mission
System. GAO staff acknowledged this in their discussions with us.
Indeed, when there are special emphasis initiatives launched by the
Commission, such as the recent E-RACE focus on race and color
discrimination or when there is an apparent rise in workplace incidents
of racial harassment, EEOC prepares specialized data reports that
assist managers in identifying trends and tracking charge activity in
these areas. However, given the almost endless combinations of focus
areas that EEOC could monitor and address based on data collected in
its charge inventory, we simply could not on a regular basis
meaningfully examine every possible combination of basis/issues. In
response to GAO's recommendation, however, EEOC will obtain and review
gender pay charge data.
Thank you for your consideration of these comments.
Sincerely,
Signed by:
Anthony Kaminski:
Chief Operating Officer:
[End of section]
Appendix V: Comments from the Department of Labor:
U.S. Department of Labor:
Assistant Secretary for Employment Standards:
Washington, DC 20210:
July 22, 2008:
Ms. Anne Marie Lasowski:
Acting Director:
Education. Workforce, and Income Security Issues:
U.S. Government Accountability Office:
Washington, D.C. 20548:
Dear Ms. Lasowski:
Thank you for this opportunity to review and comment on the Government
Accountability Office (GAO) draft report GAO-08-799 - Women's Earnings:
Federal Agencies Should Better Monitor Their Performance in Enforcing
Anti-Discrimination Laws.
As you are aware, the Office of Federal Contract Compliance Programs
(OFCCP) is responsible for administering and enforcing three equal
employment opportunity laws: Executive Order 11246, as amended; Section
503 of the Rehabilitation Act of 1973, as amended; and the Vietnam Era
Veterans' Readjustment Assistance Act of 1974, as amended. Together
these laws prohibit federal contractors and subcontractors from
discriminating on the bases of race, color, religion, sex, national
origin, and status as a protected veteran or individual with a
disability. They also require federal contractors and subcontractors to
be proactive in employing and advancing the employment of women,
minorities, protected veterans and individuals with disabilities.
In 2003, OFCCP revised its investigation procedures to focus on federal
contractors who have indicators of systemic discrimination. Compared
with years past, OFCCP more quickly and accurately screens contractor
establishments for indicators of potential discrimination with its
Active Case Management (ACM) system. Under ACM, which was fully
implemented in each of OFCCP's regions in Fiscal Year (FY) 2005, the
agency opens more reviews than it did in the past and the agency uses
automated statistical tools to rank and prioritize establishments for
further review based on the probability that discrimination would be
uncovered during a full-scale review. Under ACM, OFCCP is monitoring a
larger portion of the federal contractor universe than it has in the
past, and it is prioritizing its resources to address the worst
offenders of the law.
These initiatives are making OFCCP a more effective and efficient civil
rights enforcement agency--and have produced record enforcement
results. In FY 2007, OFCCP enforcement efforts resulted in a record
$51,680,950 in back pay and annualized salary and benefits for a record
22,251 American workers. The nearly $52 million reflects a 78% increase
over financial remedies obtained in FY 2001. Over that same period, the
number of workers recompensed by OFCCP agreements grew by 245%. This
marks the third consecutive year that OFCCP has posted record
enforcement numbers (both in terms of dollars and workers benefited).
In addition to its enforcement efforts, OFCCP's compliance assistance
efforts have been an integral part of the agency's operations. These
efforts include, among other things, widespread distribution of
brochures and other written materials that explain the laws and
regulations enforced by OFCCP; establishment of formal procedures to
respond to e-mail inquiries from the public; electronic postings of
information tools, including policy directives, the Federal Contractor
Compliance Manual, and the Federal Contractor Compliance E-Laws Advisor
to name a few; webinars available to the public; and incentive-based
programs to encourage contractor compliance and to share best practices
with the contractor community.
In June 2006, for example, OFCCP published the first definitive
guidance document on the standards used by OFCCP for evaluating the
compensation practices of a covered contractor. The guidance is
important because it provides a stronger basis for pursuing
investigations of possible systemic compensation discrimination, and
highlights the importance of compensation discrimination as an issue to
the agency. It also provides a road map to the contractor community on
how to perform a self evaluation of its compensation practices.
In addition, OFCCP regularly updates its on-line Federal Contractor
Compliance Assistance Manual through different memoranda and directives
that contain hyper-text links within the on-line compliance manual.
This approach allows OFCCP to direct attention to current information
needs and uses advances in current technology to integrate documents.
The focus of this GAO study is women's earnings. To this end, GAO
examined OFCCP's current practices for addressing gender-based
compensation discrimination and the outcome of its enforcement efforts.
While the focus of this GAO study was limited to pay issues for women,
OFCCP's legal mandate and its mission require it to focus equally on
pay discrimination against minorities, as well as on many other
impediments to equal employment opportunity for all American workers.
Accordingly, OFCCP's programs are designed to evaluate all forms of
employment discrimination, e.g., hiring, promotion, compensation, etc.
for all workers, i.e., males, females, minorities, and non-minorities.
The study raises a concern about OFCCP's monitoring of contractor self-
evaluations. It is important to note that OFCCP does not depend on
contractor self-evaluation to identify potential discrimination.
Regardless of the self-analysis records maintained by a contractor,
OFCCP conducts its own audit of a contractor's employment practices,
including its compensation practices, during compliance reviews. OFCCP
conducts such a review by examining the data submitted by a contractor
in response to a scheduling letter, including data regarding
compensation.
In line with one of the recommendations advanced by the GAO study,
OFCCP believes that its monitoring efforts will be enhanced by
improving quality control in its data management system. Currently,
OFCCP employs a number of sources to monitor regional performance,
track trends, and establish performance priorities, contrary to the GAO
conclusion that the OFCCP monitoring efforts are based on anecdotal
information. In addition, the planned upgrade of the OFCCP IT system to
broaden the range of data input will help to consolidate program
monitoring data sources.
On a more specific note, the explanation of how the Westat model is
used in the OFCCP's scheduling selection process requires some
clarification. The discussion of the model within the study report does
not explain that the Westat component is only one of several components
used to select scheduling candidates. The report's discussion might
lead a reader to conclude that the agency's scheduling list is
developed solely through the use of the Westat model. In practice, the
Westat model outcomes along with contractor data from multiple other
databases are randomly merged to create the OFCCP scheduling list.
Finally, GAO asserts that the Abt study of the Equal Opportunity Survey
was potentially flawed because employers who asserted that OFCCP had no
jurisdiction were excluded from the sample, and because 15 percent of
the establishments surveyed had missing data. OFCCP does not believe
that the non-response rate by employers who claimed lack of
jurisdiction is a potential flaw of the Abt study because the
percentage of employers who declined to respond to the survey for
jurisdictional reasons is lower than the percentage of employers who
successfully challenge OFCCP's jurisdiction for conducting affirmative
action reviews. Moreover, because the non-response rate was lower, it
is highly likely, given OFCCP's enforcement experience, that most, if
not all, employers who claimed lack of jurisdiction were in fact not
covered by the survey and therefore would not have a qualitative impact
on the findings in the Abt study. It is worth noting that because the
lack of jurisdiction has been a longstanding issue for OFCCP, in the
past few years OFCCP has initiated the Contracts First program which
has significantly increased the number of federal contractors for whom
OFCCP can verify jurisdiction. As to GAO's second point, OFCCP had the
same concern about missing data. As a result, OFCCP specifically
requested that Abt analyze the impact of the missing data. Abt included
its analysis of the missing data in Appendix E to its final report and
concluded that the missing data did not have a qualitative impact on
the main conclusions in their report.
Again, thank you for this opportunity to provide our response to the
draft report.
Sincerely,
Signed by:
Victoria A. Lipnic:
[End of section]
Appendix VI: GAO Contact and Staff Acknowledgments:
GAO Contact:
Anne-Marie Lasowski (202) 512-7215 or lasowskia@gao.gov:
Acknowledgments:
In addition to the contact named above, Michele Grgich, Assistant
Director; James Ashley; Elizabeth Curda; Meeta Engle; Christoph Hoashi-
Erhardt; Cynthia Grant; Sheila McCoy; Brittni Milam; Christine San;
Yunsian Tai; Kate Van Gelder; Charles Willson; Gregory H. Wilmoth; and
Elizabeth Wood made major contributions to this report.
[End of section]
Related GAO Products:
Equal Employment Opportunity Commission: Sharing Promising Practices
and Fully Implementing Strategic Human Capital Planning Can Improve
Management of Growing Workload. [hyperlink, http://www.gao.gov/cgi-
bin/getrpt?GAO-08-589]. Washington, D.C.: June 30, 2008.
Equal Employment Opportunity: The Policy Framework in the Federal
Workplace and the Roles of EEOC and OPM. [hyperlink,
http://www.gao.gov/cgi-bin/getrpt?GAO-05-195]. Washington, D.C.: April
29, 2005.
Women's Earnings: Work Patterns Partially Explain Difference between
Men's and Women's Earnings. [hyperlink, http://www.gao.gov/cgi-
bin/getrpt?GAO-04-35]. Washington, D.C.: Oct. 31, 2003.
Equal Employment Opportunity: Discrimination Complaint Caseloads and
Underlying Causes Require EEOC's Sustained Attention. [hyperlink,
http://www.gao.gov/cgi-bin/getrpt?GAO/T-GGD-00-104]. Washington, D.C.:
Mar. 29, 2000.
Equal Employment Opportunity: DOL Contract Compliance Reviews Could
Better Target Federal Contractors. [hyperlink, http://www.gao.gov/cgi-
bin/getrpt?GAO/HEHS-95-177]. Washington, D.C.: Sept. 28, 1995.
EEOC: An Overview. [hyperlink, http://www.gao.gov/cgi-bin/getrpt?GAO/T-
HRD-93-30]. Washington, D.C.: July 27, 1993.
[End of section]
Footnotes:
[1] GAO, Women's Earnings: Work Patterns Partially Explain Difference
between Men's and Women's Earnings, [hyperlink, http://www.gao.gov/cgi-
bin/getrpt?GAO-04-35] (Washington, D.C.: Oct. 31, 2003).
[2] OFCCP also enforces an Executive Order prohibiting certain types of
discrimination.
[3] EEOC is also charged with investigating employment discrimination
charges based on age.
[4] We initially requested 10 years of agency data on cases
investigated from FY 1997 through FY 2007. However, OFCCP was unable to
provide data before FY 2000; therefore, we limited our analysis for
both agencies to data from FY 2000 through FY 2007.
[5] EEOC also enforces the following federal statutes, which cover
issues beyond gender pay discrimination: Title VII of the Civil Rights
Act of 1964, the Age Discrimination in Employment Act of 1967, Title I
and Title V of the Americans with Disabilities Act of 1990, and
Sections 501 and 505 of the Rehabilitation Act of 1973.
[6] Pub. L. No. 88-38 (codified at 29 U.S.C. § 206(d)), amending the
Fair Labor Standards Act of 1938.
[7] Pub. L. No. 88-352, Title VII (codified at 42 U.S.C. § 2000e et
seq.)
[8] However, such differences in pay are permissible if they are
attributable to (i) a seniority system; (ii) a merit system; (iii) a
system that measures earnings by quantity or quality of production; or
(iv) a differential based on any other factor other than sex.
[9] Title VII also provides that it is unlawful to discriminate on the
basis of race, color, religion, or national origin. 42 U.S.C. § 2000e-
2.
[10] 42 U.S.C. § 2000e-4(h).
[11] 42 U.S.C. § 2000e-4(j) and (k).
[12] EEOC's inflation-adjusted budget was $308 million in FY 1997.
[13] In 1965, President Johnson signed Executive Order 11246, which
prohibited discrimination on the basis of race, creed, color, or
national origin. In 1967, it was amended by Executive Order 11375 to
prohibit discrimination on the basis of sex as well.
[14] OFCCP also enforces Section 503 of the Rehabilitation Act of 1973,
the Americans with Disabilities Act of 1990, and the Vietnam Era
Veterans' Readjustment Assistance Act of 1974.
[15] OFCCP regulations require that contractors and subcontractors with
50 or more employees and federal contracts of $50,000 or more, and
certain other contractors, develop an affirmative action program.
[16] OFCCP's FY 1997 budget was about $59 million in nominal terms,
increasing 40 percent to reach $82 million in FY 2007.
[17] Pub. L. No. 66-259 (codified at 29 U.S.C. § 11).
[18] The Women's Bureau did not provide budget data for FY 1997;
therefore, we were unable to analyze its budget trends over the past 10
years. Its FY 2001 budget was $10 million, 16 percent higher than its
FY 2007 budget after adjusting for inflation.
[19] The memorandum was signed by Labor's Employment Standards
Administration, which is composed of four offices, including OFCCP.
[20] OFCCP regulations also permit it to refer complaints to EEOC for
processing under Title VII, and another Memorandum of Understanding
allows for EEOC and OFCCP to refer cases to each other as appropriate.
[21] EEOC is required by law to respond to all charges filed under
Title VII. While it is not legally required to pursue all EPA charges
filed, agency officials said that EEOC typically does so as a matter of
policy.
[22] The set of charges analyzed in this report consists of those
handled by EEOC. Some of these charges were first received by state or
local fair employment practices agencies and subsequently transferred
to EEOC for investigation and resolution. Therefore, the number of
charges reported here may be slightly higher than the number of charges
reported in other sources, such as EEOC's Web site, which includes only
those charges initially filed directly with EEOC.
[23] In 1995, EEOC adopted the "priority charge handling procedure" to
give field personnel flexible procedures for processing charges,
including the discretion to decide the appropriate level of resources
to be used for each charge.
[24] Charges may also be dismissed at any point if, in the
investigator's best judgment, further investigation will not reveal a
violation of the law.
[25] Under EEOC policy, EEOC does not mediate agency-initiated charges
that cover multiple employees or charges filed under the EPA.
[26] The prioritization of a charge may change over the course of an
investigation. These statistics reflect the priority of the charge at
closure or the most recent prioritization for pending charges. EEOC
officials reported that from FY 2005-FY 2007, approximately 8 percent
of closed charges were upgraded in priority over the course of
investigation, while approximately 3 percent were downgraded.
[27] EEOC refers to favorable outcomes for the charging party as "merit
factor resolutions." Merit factor resolutions include negotiated
settlements, withdrawals in which the employer provided monetary or non-
monetary benefits, successful conciliations, and unsuccessful
conciliations. Unsuccessful conciliations are included because the
agency found a violation of discrimination laws, even if conciliation
was not successful.
[28] EEOC officials told us that charges filed only under the EPA are
not mediated because discriminatory pay practices may affect a class of
individuals, not just the charging party. Additionally, while charging
parties in gender pay cases may possess their own payroll data or that
of other employees, they often do not have access to the wage data for
all affected people or for those who may be most comparable to the
charging party. EEOC can collect such data during the investigation
process. Also, a full investigation may allow EEOC to uncover systemic
discrimination that would have otherwise gone undetected.
[29] The other eight performance measures are: (1) the percent of the
public confident in EEOC's enforcement efforts, (2) the percent of
federal sector hearings resolved in 180 days, (3) the percent of
federal appeals resolved in 180 days, (4) the percent of investigative
files meeting quality criteria, (5) the percent of parties confident in
EEOC's mediation program, (6) the percent of lawsuits successfully
resolved, (7) the percent of the public aware of their equal employment
opportunity rights and responsibilities, and (8) the percent increase
in the number of individuals benefiting from EEOC's enforcement
programs for each agency full-time equivalent employee.
[30] The difference between the EPA and Title VII statistics reflect
the scope of coverage of each law. While the EPA applies only to gender
pay discrimination, Title VII covers a broad range of employment issues
(such as hiring, firing, and promotions) and bases for discrimination
(such as race, color, religion, and national origin).
[31] Similar statistics are also available for other types of
discrimination, including race. These statistics are not broken out by
charges related to harassment, hiring, promotion, pay, or other
specific issues.
[32] EEOC provides statistics for some categories of discrimination
charges on its Web site. These include reports on charges generally
related to harassment, national origin, pregnancy, race, religion,
gender, and sexual harassment. However, these statistics are not broken
down by the issue presented in the charge, such as compensation.
[33] Ledbetter v. Goodyear Tire & Rubber Co., 127 S. Ct. 2162 (2007).
In this case, the plaintiff, a female retiree, sued her former employer
alleging that poor performance evaluations, based on sex
discrimination, earlier in her employment had resulted in lower pay
than her male colleagues through the end of her career. The Court
considered whether and under what circumstances a plaintiff may bring
an action under Title VII alleging illegal pay discrimination when the
disparate pay is received during the statutory limitations period, but
is the result of intentionally discriminatory pay decisions that
occurred outside of the limitations period. In Ledbetter, the Court
held that the statute of limitations is triggered when a discrete
unlawful practice takes place, and concluded that pay decisions, rather
than the issuance of paychecks, constitute discrete acts. As a result,
a new violation does not occur and a new charging period does not
commence upon the occurrence of subsequent nondiscriminatory acts
(issuance of paychecks) that entail adverse effects resulting from past
discrimination (poor performance evaluations). As a result, her claim
was time barred.
[34] To determine whether the number of pay discrimination charges
changed after the Ledbetter decision, we analyzed the number of pay
charges filed under Title VII and other statutes, such as the EPA,
during the 4 months preceding the decision and the 4 months following
the decision. We found a 35 percent increase in average monthly filings
of all pay discrimination charges and a 31 percent increase in gender
pay filings in the 4 months following the decision. There did not
appear to be a sustained shift away from filing under Title VII and
toward filing under other statutes not affected by Ledbetter, such as
the EPA, during that period. However, it may be too early to assess
what effect, if any, the Court's decision will have on charges filed
over time. EEOC issued guidance following the Ledbetter decision that
instructed investigators to refrain from dismissing pay discrimination
charges under Title VII solely on the basis of timeliness without first
consulting with the agency's Office of Legal Counsel to determine
whether the Ledbetter holding applies.
[35] EEOC's goal for the percentage of charges completed within 180
days has increased from 60 percent in FY 2003 to 72 percent in FY 2007.
[36] These percentages are probably low estimates. EEOC's outreach data
are not structured in a way that would allow for obtaining an
unduplicated count of events by topic.
[37] According to agency officials, the most recent initiative that
related to gender occurred in the early 2000s and focused on low-wage
earners, including women.
[38] Free outreach spending decreased 42 percent before adjusting for
inflation.
[39] EEOC data also shows a decline in audience members, but officials
attributed this decline to a change in data collection methods.
[40] Federal law established the EEOC Education, Technical Assistance,
and Training Revolving Fund, which is to be used to pay the costs of
providing fee-based education, technical assistance, and training
related to laws administered by the EEOC. The monies in the fund are
available only for those purposes.
[41] EEOC is required by law to report annually to the President and
Congress on its fee-based outreach activities, including the number of
persons and entities receiving assistance.
[42] EEOC officials told us that this decision was made after
consulting with the Office of Management and Budget as part of the
Program Assessment Rating Tool review process.
[43] A program logic model is an evaluation tool used to describe a
program's components and desired results and explain the strategy--or
logic--by which the program is expected to achieve its goals. By
specifying the program's theory of what is expected at each step, a
logic model can help evaluators define measures of the program's
progress toward its ultimate goals. See GAO, Program Evaluation:
Strategies for Assessing How Information Dissemination Contributes to
Agency Goals, [hyperlink, http://www.gao.gov/cgi-bin/getrpt?GAO-02-923]
(Washington, D.C.: Sept. 30, 2002).
[44] In addition to pursuing cases of systemic discrimination that
affect an entire class of workers within one or more companies under
Executive Order 11246, as amended, OFCCP also investigates individual
complaints of discrimination by federal contractors filed under section
503 of the Rehabilitation Act of 1973, as amended, the Americans with
Disabilities Act of 1990, and the Vietnam Era Veterans' Readjustment
Assistance Act of 1974, as amended. Consistent with its regulations,
OFCCP is to refer all other individual complaints to EEOC under a
Memorandum of Understanding.
[45] OFCCP primarily uses the Federal Procurement Data System to
identify covered contractors. This data system, managed by the General
Services Administration, is a central repository of information on
federal government contracts.
[46] The number of contractors selected by the mathematical model is
considered enforcement sensitive by the agency.
[47] In FY 2007, about 30 percent of contractors who were initially
included on the list were subsequently removed after being deemed
ineligible for review for such reasons as going out of business or
having contracts under $50,000 or fewer than 50 employees. OFCCP then
notified the remaining contractors that they had been scheduled for
review.
[48] OFCCP regulations permit this on-site audit to be followed by
additional off-site analysis, if necessary.
[49] OFCCP began the Contracts First initiative in 2006 to identify
establishments that have federal contracts but may not have filed an
Employer Information Report (EEO-1 Report), which must be filed by all
private employers who have 50 or more employees and have a federal
contract, subcontract, or purchase order amounting to $50,000 or more.
[50] 41 C.F.R. § 60-2.17(b)(3).
[51] Other recent guidance not incorporated in the compliance manual
includes interpretive standards for systemic compensation
discrimination, issued in 2006, and an internal notice regarding
analysis of compensation practices at the desk audit stage in 2007.
[52] The percentage of compliance evaluations that are verified and the
frequency of contractor data accuracy checks are considered enforcement
sensitive by the agency.
[53] Internal controls comprise the plans, methods, and procedures an
organization uses to meet its missions, goals, and objectives. Internal
controls used by government agencies may include guidance that defines
the specific data to be collected and any documentation needed to
support the data and safeguards to ensure data are secure. Some key
aspects of internal controls for collecting and reporting data include
guidance that provides clear and consistent instructions on which data
elements must be captured. They also include data entry procedures and
edit check software to help ensure data entry is accurate and
consistent. For more information on internal controls, see GAO,
Standards for Internal Controls in the Federal Government, [hyperlink,
http://www.gao.gov/cgi-bin/getrpt?GAO/AIMD-00-21.3.1] (Washington,
D.C.: Nov. 1999).
[54] Officials told us that OFCCP has recently asked field offices to
begin tracking the number of audience members, but field offices have
not yet begun reporting these data in their weekly or monthly reports.
[55] Web-based seminars are a new development at OFCCP; as of May 2008,
there had only been two, although OFCCP plans to hold one each quarter.
[56] Two industry groups told us that the messages of OFCCP's outreach
have sometimes been inconsistent, but that the agency is improving its
outreach.
[57] In our prior work, we found that obtaining feedback from
recipients of outreach is an important tool for assessing its
effectiveness. See GAO, Program Evaluation: Strategies for Assessing
How Information Dissemination Contributes to Agency Goals, [hyperlink,
http://www.gao.gov/cgi-bin/getrpt?GAO-02-923] (Washington, D.C.: Sept.
30, 2002).
[58] OFCCP officials told us they were able to obtain the 30 percent
estimate by sampling staff time cards. However, they were unable to use
this information to obtain an exact spending amount.
[59] We requested 10 years of data, but OFCCP was unable to provide
data before FY 2000.
[60] We initially requested 10 years of agency data on cases
investigated from FY 1997 through FY 2007. However, OFCCP was unable to
provide data before FY 2000, and we limited our analysis for both
agencies to data from FY 2000 through FY 2007.
[61] While we obtained 10 years' worth of outreach data from EEOC, EEOC
changed data systems in 2003, resulting in more comprehensive budget
and outreach data beginning in FY 2004. Therefore, we limited our
analysis to FY 2004 through FY 2007.
[62] However, such differences in pay are permissible if they are
attributable to (i) a seniority system; (ii) a merit system; (iii) a
system that measures earnings by quantity or quality of production; or
(iv) a differential based on any other factor other than sex.
[63] Bendick, Marc Jr. et al, The Equal Opportunity Survey: Analysis of
a First Wave of Survey Responses (Washington, D.C.: Sept. 2000).
[64] Abt Associates Inc., An Evaluation of OFCCP's Equal Opportunity
Survey, (Cambridge, Mass.: Feb. 2005).
[End of section]
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